.y*"^ n/"'' 



THE 



-"\ 



CONSCRIPTION ACT 

VINDICATED, ^^t^ 



<ri- 



THOMAS, HILLHOUSK, 



ADJUTANT-GENERAL OF THE STATE OP NEW YORK, 



ALBANY ; 

WEED, PARSONS AND COMPANY, PRINTERS. 
18G3. 






7 



A DEFENSE 



CONSCRIPTION LAW. 



A writer styling himself "An Original War Democrat," in a 
series of articles published recently in a leading journal, attacking 
the constitutionality of the conscription law, passed by the late Con- 
gress, sets out with the remark, that " the people of the State of 
New York proclaimed at the election last fall, and have unmis- 
takably reiterated at the elections this spring, their determination 
hereafter, to be governed by law, and not by the arbitrary will of 
any man, or any body of men." 

It is presumed there will be few who will cavil at this determina- 
tion, and fewer still, to whom the conviction of the possibility of 
preserving the government, without even so much as a suspension 
of the least prized of our civil rights, would not bring with it a 
sense of relief and satisfaction. It would be an additional ground 
of hope, if we could be assured that all constitutional laws would 
be obeyed, and that questions affecting their validity were raised to 
elicit the truth, and not to embarrass the government. 

The argument of the writer referred to, rests mainly on the pro- 
position: "that the power to pass such a law does not exist, unless 
it is affirmatively given to Congress by the Constitution, all other 
power being reserved to the States respectively, or to the people." 

The act is based on the power " to raise and support armies ;" 
and the first question is, what is the meaning of the clause, and 
other clauses bearing on the subject, as gathered from a considera- 
tion of the ends and purposes for which the Constitution was 
formed, and as established by the judicial tribunals and laid down 
by learned commentators? 



Says Story, in treating of the powers of Congress, " if there be 
any general principle which is inherent in the very definition of 
government, and essential to every step of the progress to be made 
by that of the United States, it is that every power vested in a 
government, is in its nature sovereign, and includes by force of the 
term, a right to employ all the means requisite and fairly applicable, 
to the attainment of the end of such power; unless they are 
excepted in the Constitution, or are immoral, or are contrary to the 
essential objects of political society." 

Such, also, is the ground taken in the twenty-third number of the 
Fediyralist In speaking of the scope and extent of the powers 
which should be devolved on a government, charged with the duty 
of the public defense, it is laid down as an axiom, that cannot be 
disputed, that "the means ouglit to be proportioned to the end; the 
persons from whose agency the attainment of any end is expected, 
ought to possess the means by which it is to be attained." 

In d(^livering the opinion of the court in the case of McCuIloch 
against the State of Maryland, Chief Justice Makshall said that "in 
the execution of those great powers on which the welfare of a nation 
essentially depends, it must have been the intention of those who 
gave those powers, to insure, as far as human prudence could insure, 
their beneficial execution. This could not be done by confining the 
choice of means to such narrow limits as not to leave it in the power 
of Congress to adopt any which might be appropriate and which 
were conducive to the end. This provision is made in a Constitu- 
tion, intended to endure for ages to come, and consequently to be 
adapted to the various crises of human affairs. To have prescribed 
the means by which Government should in all future time execute 
its powers, would have been to change entirely the character of the 
instrument, and give it the properties of a legal code. It would 
have been an unwise attempt to provide by immutable rules for 
exigencies which, if foreseen at all, must have been seen dimly, 
and which can be best provided for as they occur." 

The rules of construction here laid down are fully sustained by 
more recent decisions, and it may be asserted with safety, that they 
carr}^ with them a weight of authority which cannot be overcome 
short of denying the jurisdiction of the tribunal from which they 
emanate. They have, therefore, controlled the practice of the 
Government in the exercise of the powers with which it is clothed — 
powers that, under a more strict interpretation, must have remained 
useless for the purposes which they were intended to subserve. As 



it is contrary to reason and common sense to suppose that a single 
power contained in the Constitution was granted with any other 
object than that it should be used as often and to as great an extent 
as the exigency of the occasion should require, it is manifest that no 
rule of interpretation so strict as to prevent such use would be 
admissible. No interpretation can be put on a positive grant of 
power which would defeat the object for which the grant was made, 
and consequently, to use the language of Story, "all appropriate 
means to execute it are to be deemed a part of the power itself" 

In the application of these principles of interpretation, there has 
grown up a vast body of laws, on almost every conceivable subject, 
resting for their validity on their relation to the genejal powers of 
Congress, and on the analogies of their provisions with the scope 
and purposes of those powers. The incorporation of banks, the 
acquisition of territory, the erection of fortifications, the establish- 
ment of nav}'- yards and military posts, the interdiction of commer- 
cial intercourse, the purchase of arms and the erection of manufac- 
tures for their fabrication, are nowhere enjoined in the Constitution, 
and yet they arise more or less directly as instrumental powers or 
means, for accomplishing the objects of the express grants. This 
conclusion would follow, without reference to the clause, " to make 
all laws which shall be necessary and proper for carrying into execu- 
tion the foregoing powers." It would flow naturally from a con- 
sideration of the objects and purposes for which the Government 
was instituted, and from the nature of the express powers granted 
to it. What, for instance, would be the value of a power to regulate 
commerce, if we could not impose duties ; of a power to declare 
war, if we could not use every expedient for its successful prosecu- 
tion ; of a power to provide and maintain a navy, if we could not 
build ships ; or of a power to raise and support armies, if we could 
not procure arms or men. Like the celebrated Declaration of Right, 
which Macaulay has eulogized as containing the germ of every good 
law which has been passed in England during a hundred and sixty 
years, the Constitution of the United States carries along with it, 
every incidental power necessar}^ to give it force and effect. 

As has been already shown, the right of using every requisite 
means, in the execution of an}^ of the enumerated powers, would 
arise by implication; and this, we think, is the doctrine held by the 
courts. It is not, however, to be assumed tliat the clause " to pass 
all laws which shall be uec-'ssary and proper for carrying into execu- 



tion the foregoing powers," has no significance or value. In the first 
place, it shows that the intention was to clothe the legislative branch 
of the Government with authority to fulfill its trusts, and thus 
removes any doubts that might be raised under a merely inferential 
power of legislation in respect to them. In the second place, a law 
made witliin the fair scope and meaning of the clause, is only open 
to attack on the ground of its necessity and propriety, as a means to 
an end, and not so much on a question raised as to the original right 
to enact it. In the third place, it restricts the authority of the 
National Legislature, with respect to its enumerated powers, within 
the limits of necessary and proper legislation, and thus provides a 
way in which the exercise of that authority can be made the subject 
of judicial investigation. ^^ If, neither enlarges " says Story, in com- 
menting on this passage, ^^ any power specifically granted^ nor is it the 
grant of any new power to Congress. It is merely a declaration for the 
removal of all uncertainty,, that the means of carrying into execution those 
otherwise granted^ are included in the grant. Whenever, therefore, a 
question arises concerning the constitutionality of a particular power, 
the first question is, whether the power be expressed in the Constitu- 
tion. If it 1)e, the question is decided. If it be not expressed, the 
next inquiry must be whether it is properly an incident to an express 
power, and necessary to its execution. If it be, then it can be exer- 
cised by Congress. If not, Congress cannot exercise it." 

In attempting to strengthen his reasoning, " An Original War 
Democrat," refers to the grant of power to make all " necessary and 
proper laws," and then proceeds to say that " it means simply that if 
any other part of the Constitution gives to Congress the power to com- 
pel citizens to serve in its armies, it shall have all incidental powers 
necessary to enforce that power." In confirmation of this view, he 
quotes that piortion of the passage just given from Story which we 
have placed in italics, leaving out the remaining portion, which, it 
will be seen, materially qualifies the part quoted, and, in fact, clearly 
shows the meaning of the commentator. It is indeed sufficiently 
evident, from his whole course of reasoning, that by the words 
" otherivise granted" Story referred, not only to enumerated powers, 
but to the incidental powers required in their exercise as well ; and 
that part of the passage which was omitted must remove all doubt 
on this point. If a question arises as to the constitutionality of a 
certain power not expressed, and it is found to be properly an inci- 
dent of an express power, and necessary to carry it out, Congress 



can exercise it. This, we presume, must be convincing so far as 
Story is concerned. On the propriety of thus bending the views of 
a distinguished author to sustain a theory to which the whole course 
of his reasoning is opposed, we have no opinion to offer. 

There is a single other clause of the Constitution, on which we 
desire to dwell for a moment, as having a bearing on the point under 
discussion. We refer to the tenth amendment, which provides, 
*' that the powers not delegated to the United States by the Con- 
stitution, nor prohibited by it to the States, are reserved to the States 
respectively, or to the People." It was the opinion of Marshall on 
this clause, delivered in the case of McCulloch against the State of 
Maryland, that the passage as it stands, " leaves the question whether 
the particular power which may become the subject of contest, has 
been delegated to the one government, or prohibited to the other, to 
depend on a fair construction of the whole instrument." Adopting 
this view. Story says that *' it is plain it could not have been the in- 
tention of the framers of this amendment, to give it effect, as an 
abridgment of any of the powers granted under the Constitution, 
whether they are expressed or implied^ direct or indirect. All powers 
not delegated (not all powers not expressly delegated) and not pro- 
hibited, are reserved." This is the only rational view of the sub- 
ject, and it was further urged with much force in the debate in Con- 
gress in 1791, on the United States Bank. Gerry said that if only 
such powers were delegated as were expressed, he must admit that 
our whole code of laws was unconstitutional. It was asked with 
equal force by Ames, whether, if the power of raising armies had not 
been expressly granted, it would be inferred that we had the power 
of declaring war without the means of carrying it on. Even Madi- 
son, although in favor of a strict construction, and opposed to the 
bill, was forced to admit, that if the letter of the Constitution were 
strictly adhered to, and no latitude of construction allowed, no power 
could be exercised by Congress, and that thus every benefit that 
might reasonably be expected from an efficient government would 
be lost. " '■'■'■^^' ' 

Thus it will be seen, that no objection will lay against Conscrip- 
tion because it is not mentioned as one of the enumerated powers, 
or in connection with the particular one to which it relates. The 
enumerated powers, from the nature of things, must carry with them, 
as means, such incidental powers as are necessary to give them vital 
force and effect If this were not so, every grant in the Constitu- 
tion would be practically nullified, unless from the nature of its terms. 



it included the means requisite for its execution. It would have 
been impossible for the Convention to have indicated these, unless 
it had resolved itself into a legislative assembly, and proceeded to 
enact laws instead of framing a Constitution. Or granting that it 
would have been practicable, how would they have selected the 
means suited to the condition of public affairs at particular periods ? 
Instead of attempting a task no less hopeless than foreign to the 
purposes for which they were met, the Convention confined itself to 
a grant of general powers, with the grant of an additional power to 
make all necessary and proper laws to carry them out. Now, if the 
principle of compulsory service is an incident to the expressed power 
" to raise and support armies," and if, in the judgment of Congress, 
it is a necessary and proper means to that end, it will follow from 
the previous reasoning that beyond all question, the right to resort 
to it, is just as well established, as if it had been inserted in the Con- 
stitution as one of the enumerated powers. 

The opposite conclusion would invalidate the larger portion of the 
laws of Congress, since the formation of the Government ; for it is 
well known that it consists, in good part, of regulations for the use 
of incidental powers, necessary for the execution of some one or 
other of the enumerated powers, and by force of their relation to 
them, forming necessary and proper subjects of legislation. The 
power " to declare war " would depend on the power " to raise and 
support armies," and the latter, depending on an incidental power 
not " affi,nnat>.vely granted^"' both would fall to the ground. Revers- 
ing the usual order of things, the means would control the end, 
although that end were the protection^ pf the public safety, and even 
the preservation of the Government. In short, we should present to 
the world the remarkable spectacle of a People, who after an ex- 
perience of more than eighty years, had failed to understand the 
nature of their organic law. 

Ilaving thus endeavored to refute the objection raised against the 
constitutionality of the act, based on the proposition " that the power 
to pass such a law does not exist, unless affirmatively given to Con- 
gress by the Constitution," we now proceed to notice, briefly, objec- 
tions of a more general nature. 

In the first place it is maintained " that compulsory, military ser- 
vice is due primarily by the citizen to the State alone, and that the 
only title to it which the Federal Government can acquire, is by 
virtue of its transfer from the State to the National authorities ; that 



the Constitution means, that if Congress is unable to procure the 
necessar}^ number of men for its armies by voluntary enlistment, it 
must call upon the militia (in which every ablebodied citizen may 
be compelled to serve), which is then to be transferred to the service 
of the United States, to such an extent as may be necessary, under 
the regulations provided for that purpose in the Constitution." 

This is a surprising statement. On what ground does the writer 
claim, that under a Government emanating. State as well as National, 
from the People, the one has a more direct claim on the military 
service of the citizen than the other ? The People have invested the 
National Government with certain powers, amongst the rest, those 
of declaring war and raising and supporting armies. They have 
also enjoined on the State Government the duty of placing the 
militia in readiness for service. The duty of providing for the 
common defense was transferred by the People from the State to 
the National Government, because it had been found under the 
Confederation, the States could not exercise it efficiently. What 
reason is there to suppose that the People intended, or do now intend, 
that the powers granted to the one, shall be construed differently 
from those granted to the other? Such a presumption cannot be 
founded on a consideration of the comparative importance of the 
respective grants ; for that to the National Government, invested as 
it is with the duty of providing for the public safety, covers, to say 
the least, as important objects as that to the State. Nor can it be 
founded on the language of the respective Constitutions; for the 
phrase " to raise and support armies" is as definite as that " to arm, 
discipline, and keep the Militia in readiness for service." Nor, lastly, 
is it certain it can be founded on the idea that a more liberal con- 
struction is admissible in the case of the State Constitution than 
in that of the National ; and that whilst incidental powers can be 
introduced ad libitwm in the one case, they are to be studiously 
avoided in the other. Story says (in answering an argument 
of Judge Tucker, who was for a strict construction), " when it is 
insisted that the Constitution of the United States should be con- 
strued strictly, viewed as a social contract, whenever it touches the 
rights of property, or of personal security or liberty, the rule is 
equally applicable to the State Constitutions in the like cases." If, 
then, "An Original War Democrat" is sound on constitutional law, 
tlie inference would be that there is no power to compel the military 



8 

service of a solitary citizen, by virtue of any existing authority ; 
and in that case the provisions of the militia law relating to a draft 
would not be worth the paper on which they are written. 

Another inference conveyed in the passage previously quoted, is, 
that although the National Government cannot institute Conscription, 
it can accept volunteers. But on the reasoning of " An Original War 
Democrat," is there any more authority in the one case than in the 
other? No military force of any description can be lawfully called 
out, without a law of Congress ; and the President of the United 
States so clearly exceeded his powers in 1861, although it was 
eminently right and proper that he should do so, that, if we are not 
mistaken, an act was passed relieving him from responsibility. Now, 
whence does Congress derive the authority to pass laws calling out 
volunteers? It cannot be from the clause "to provide for calling 
out the Militia," for volunteers are a different description of force. 
It must be, then, from the power "to, raise and support armies:" 
and now we wish to inquire if this power, as is claimed, confers no 
authority on Congress to pass a conscription law, how could it con- 
fer any authority on that body to pass laws calling out five hundred 
thousand volunteers? The right to legislate in respect to a Conscrip- 
tion is denied, because the power is not expressed in the Constitution. 
Is not the want of an express power to accept volunteers, equally 
fatal? And thus the upshot of the whole matter would be, that this 
great Government charged by the Constitution (the work of the 
People) with the duty of protecting the public safety, with more 
than two millions of men liable to bear arms, and yet bereft of every 
means of defense, must fall helpless before the bugbear of incidental 
powers. This comes very near to a reductio ad absurdum, but it is 
nevertheless a fair deduction fro7n the reasoning of "An Original 
War Democrat." 

Again it is said, that "in construing constitutions, and indeed all 
other written documents, one of the most familiar aids to which 
lawyers and courts resort, when the question arises as to the meaning 
of a phrase, is to ascertain what was the defect which it was intended 
to remedy ; and the rule is well settled, that if the case is not within 
the meaning of the mischief to be guarded against, it is not within 
the meaning of the Statute, although it may be within the words of 
the Statute." Without either afldrming or denying the correctness 
of this rule, we are confident its application will not prejudice the 
Act of Congress under consideration. 



What were the defects of the Articles of Confederation, which 
Madison observed should never be overlooked, " in expounding and 
appreciating the Constitutional Charter, xuhich was the remedy pro- 
videdV They are sketched with unanswerable force in the Federalist, 
from which we extract the following passage relating to the military 
service: — 

" The power of raising armies, by the most obvious construction 
of the Articles of the Confederation, is merely a power of making 
requisitions upon the States for quotas of men. This practice, in 
the course of the late war, was found replete with obstructions to a 
vigorous and to an economical system of defense. It gave birth to 
a competition between the States, which created a kind of auction 
for men. In order to furnish the quotas required of them, they 
outbid each other, till bounties grew to an enormous and insurmount- 
able size. The hope of a still further increase afforded an induce- 
ment to those who were disposed to serve to procrastinate their 
enlistment ; and disinclined them from engaging for any considerable 
periods. Hence, slow and scanty levies of men, in the most critical 
emergencies of our affairs ; short enlistments at an unparalleled 
expense ; continual fluctuations in the troops, ruinous to their disci- 
pline, and subjecting the public safety frequently to the perilous 
crisis of a disbanded army. Hence, also, those oppressive expedients 
for raising men, which were, upon several occasions, practised, and 
which nothing but the enthusiasm of liberty would have induced 
the People'to endure." 

It was to obviate such a state of things, that the Convention gave 
Congress power *' to raise and support armies ;" a power in regard 
to which the extraordinary statement is made "that all parties con- 
ceded it was what the lawyers call an enabling act; that is, an act 
which enables a corporation to accept an estate or other benefit 
proffered to it, and which it would otherwise have no legal power to 
accept and hold." Now, this we distinctly and unequivocally deny. 
We deny that " all parties conceded " any such thing, and we deny 
that any party conceded it. The Constitutional Convention did not 
concede it : the State Conventions called to ratify the Constitution 
did not concede it : the Judicial Tribunals have not conceded it : 
nor those learned commentators, whose expositions are universally 
relied on for their correctness and impartially. It is nothing but a 
bald and naked assumption. What remedy would it have been, for 
an evil of this magnitude, to have said. Congress may raise armies, 
but only by voluntary enliatment? The States possessed that power, 



10 

but after the first enthusiasm for the war was over, they could never 
fill their quotas, although they used extraordinary efibrts and paid 
large bounties. Is it probable that the Convention, with this fact in 
view, meant to confine the authority of Congress to the use of a 
single means ? If it had, would it not have been so stated ? Suppose 
no men could be raised in that way, was it the intention that the 
power should fall to the ground, carrying with it the power " to 
declare war," or at least to wage it? 

The remedy proposed by "An Original War Democrat," for this 
difficulty, is, to call out the Militia. But aside from the fact, that 
no protracted war ever has or ever can be carried on with such a 
force, we hold that no enumerated power in the Constitution can 
ever be rendered nugatory, whilst there are any means left within 
the meaning of the clause "necessary and proper" for its execution. 

The principle cited, " that words of doubtful meaning in one part 
of a statute will not be construed to include a case for which full 
provision is made in another part of the statute," will not apply. A 
constitution and a law are two different things. The first is a grant 
of powers, or a prohibition of powers, or both ; the last is rather a 
means of exercising powers. But conceding the analogy, still, on 
the assumption that a power " to raise and support armies," carries 
with it a power to draft, it must be for a National force and that alone; 
and tbe power " to provide for calling forth the Militia," must carry 
with it the power to draft, for tJiat description of force and that alone. 
How, then, would an exercise of the latter power, answer the 
requirements of the former? The compulsion, in either case, is only 
a means to an end; which, in the one case, is to form a regular force, 
and in the other a force of militia. The power " to provide for 
calling forth the Militia," is not, therefore, "a full 2^'^ovision,''^ for 
the power " to raise and support armies," nor any provision for 
it whatever. 

To sustain the theory as to the meaning of the clause, " to raise and 
support armies," which we are opposing, a further argument is 
drawn from contemporaneous construction. After the statement 
that the clause was vehemently opposed in the State Conventions, it 
is said that " no one ever dreamed that it would be construed as 
giving Congress the power to force the citizen into the army^'' and that 
"this remarkable omission of any contemporaneous allusion to 
such a power, under such circumstances, would of itself be quite 
conclusive against its existence." 



11 

In answer to this reasoning, we may repeat here, that the Consti- 
tution bears on its face the most unmistakable evidence that it is 
what it was intended to be, a grant of general powers ; and that in- 
stead of attempting to indicate in respect to them, the incidental 
powers or means, the Convention left them to be selected at the dis- 
cretion of Congress, under the clause " to make all necessary and 
proper laws " for that purpose. They never intended to go into 
any enumeration of incidental powers, and the debates were mainly 
confined to those of a general nature. They were framing a Gov- 
ernment to last for ages, and they saw the impossibility of doing 
more than marking out the great outlines of constitutional power, 
and defining the duties of the several departments of the Govern- 
ment. 

The forecast which marked the proceedings of the Convention of 
1787 stamps it as beyond all question, the wisest, the most patriotic, 
the most august body, that ever assembled for the high purpose 
of framing a government for a political society. Let us reflect 
for a moment on what would have been the consequence of an 
opposite course. Suppose they had acted on the presumption that 
those who were to administer the Government they were instituting 
would be unworthy of confidence, and had proceeded lo restrict the 
sphere of their action by an enumeration of powers or means. Can 
any one fail to see, that great as these men were, there was not in 
that assembly a genius so lofty, that it could have pierced the veil of 
the future and anticipated the progress of the race for the next fifty 
years ? What, for instance, would have been the scope given to the 
power to regulate a commerce then in its infancy, but whose sails 
now whiten every sea? What would have been the limit fixed for 
the public debt, under the power to borrow money ? or what pro- 
vision would have been adopted for the acquisition of new territory ? 
Who could have foreseen the necessity for the embargo act, or the 
propriety of an expansion of our limits exceeding in extent those 
of the original thirteen States? These considerations weighed on 
the mind of the Convention. They saw, dimly though it were, the 
glorious future opening up for the Eepublic they were founding, and 
they determined to place no impediments in the way of its progress. 
In the expressive language of Hamilton, they realized " that a gov- 
ernment, the constitution of which renders it unfit to be entrusted 
with all the powers which a free people ought to delegate to any 
government, would be an unsafe and improper depository of the 



12 

national interests ; and that whenever these can with propriety be 
confided, the coincident powers may safely accompany them." 

Now when the Constitution, framed with these views, came before 
the State Conventions, it had to pass through another and a severer 
ordeal. Here it was that the advocates of State rights, and of a 
confederation instead of a government of the People, made their 
final stand. The fears of the People were excited by the cry of a 
consolidated government, and their selfishness aroused b}^ appeals 
to local feelings and jealousies. The Conventions were broken up 
into parties holding adverse opinions, and neither the friends nor 
the enemies of the new system were unanimous in their interpreta- 
tion of it, either as a whole or with respect to its separate parts. 
And now we desire to ask, if contemporaneous opinion is to be 
relied on, liow is it to he ascertained? How shall we proceed to 
eliminate the truth from the mass of conflicting testimony? If we 
refer to the debates in the Constitutional Convention, we find that 
in regard to some subjects, they were not preserved ; and on others, 
opinions differed. If we go to those of the States, we meet with the 
same difficulties. In respect to several, the proceedings were not 
preserved, and here there is absolutely no light whatever. In the 
Convention of Virginia, Patrick Henry held that, under the power 
"to provide for organizing the Militia," the States were absolutely 
bereft of all power; and although he was opposed by Governor 
Kandolph and others, he maintained this opinion to the last. There 
were members of the Convention who held, that the clause "to pro- 
vide for the common defense and general welfare," included of itself, 
the broadest powers of legislation, and George Mason was opposed 
to the Constitution for this and other reasons. On the other hand, 
many eminent men attached a more restricted meaning to it. It 
was denied in the Federalist that the President could exercise the 
power of removal without the consent of the Senate, and yet, in the 
first Congress, his power to do so was affirmed; and there are 
other cases on record, in which contemporaneous evidence has been 
overruled by the Judicial Tribunals. 

We remark here, that from the nature of the case, there never has 
been, and never can be, any difference of opinion as to the meaning 
of the enumerated powers. The powers to coin money, to regulate 
commerce, to declare war, to raise and support armies, and to pro- 
vide a navy, mean just what the language imports. There is here 
no room for doubt. It is only when we come to consider the inci- 
dental powers or means, that there ever has been or ever can be any 



13 

difference. Now, admitting for the sake of argument, that it could 
be ascertained beyond cavil, what was the scope given to these inci- 
dental powers by the founders of the Government, and by the pub- 
lic men of that day, we maintain it would have no binding force on 
the National Legislature ; and further, that they would be estopped 
from treating it as a precedent, in every case, where, in their opinion, 
it did not square with the power "to make all necessary and propef 
laws," to carry the enumerated powers into execution. There is no 
authority residing anywhere to make a law which is not necessary 
and proper, and of the necessity and propriety Congress must, in 
the first instance, be the judge. The opposite conclusion would 
involve the absurdity of supposing that the grant "to make all 
necessary and proper laws," means such laws only as may have been 
deemed necessary and proper at the time the Constitution was formed ; 
Oivbs excluding the power of choice for all future time, although the pro- 
gress of science, the changed circumstances of the country, or the 
presence of some great public exigency demanded it. However 
wide the circle of its deliberations, however clear its perceptions of 
the public wants. Congress, on the reasoning we are combating, must 
Btill come back to the point of contemporaneous construction, and 
be governed by the views of former generations. 

We shall conclude what we have to say, with a brief examination 
of objections drawn from the provisions of the Act. 

I. " That the Conscription Law is contrary to the Genius 
AND Spirit of our Institutions." 

The great and distinctive principle of our form of government is 
equality and equal laws. No man must be legislated into a worse 
position than his neighbor, and the difference in wealth, position 
and influence, must arise from those differences in natural endow- 
ments, in individual efforts, and fortuitous circumstances, which are 
beyond the domain of legal remedy. Now, if Conscription does 
not violate this principle, then the objection we are considering can- 
not be sustained. It certainly cannot attach to the idea of compul- 
sion, for that is admitted in civil matters, and without the power to 
compel obedience, no government could stand a moment. Jury 
service is a familiar instance of this, as is also compulsory attend- 
ance as a witness for the government in criminal cases. If military 
institutions are a means for the protection of life, property and 
government, whenever a coercion of laws fails (and if they cannot 
be j ustified on this ground, they are an anomaly under a govern- 



14 

ment like ours, and ought not to be tolerated) there is no reason 
why they should depend on the voluntary obedience of the citizen 
for their support, any more than those of a civil character. What 
then is Conscription? It is an enrollment of persons of a certain 
age, who are held liable to be afterwards drafted into the military 
service by lot. It was part of the Roman system, was adopted in 
France at the period of the Revolution, and prevails in one form or 
another under all the great military governments of Europe, with 
the exception of that of Great Britain. This exception, however, 
furnishes no argument against it, hut is the result of the isolated 
position of that government, its greater dependence on the naval 
arm, and the custom of employing paid mercenaries of other nations. 
In the Peninsular War, we believe the native English troops never 
reached one hundred thousand, and at Waterloo they were less than 
eighty thousand. In the campaign of 1813, England furnished no 
troops to the Allied Armies; but her subsidies of money helped to 
keep them in the field. In India, almost the whole force employed 
there at the breaking out of the rebellion, was composed of Sepoys 
or natives. Now, when we reflect that England has not yet had a 
regular force much exceeding one hundred thousand men in service, 
with a population as large as that of tlae loyal States, with low 
wages, and a surplus of laborers, we can easily see why she has been 
able to keep up the strength of her military forces by voluntary 
enlistments. In France the case is different. In the first years of 
the Revolution, half a million of disciplined troops were precipitated 
on her borders, and when the first enthusiasm for the war, which 
crowded the highways with volunteers, had abated, as it always 
will in protracted wars, it became necessary to establish some 
general system, for the purpose of keeping up such a military force 
as the public exigency required. This was done by conscription, 
and an annual draft, from the persons conscripted or enrolled. This 
system, modified, perhaps, from time to time, is still in force. 

If we consider further, that Conscription prevailed in the two 
most powerful republics that ever existed in Europe, and that 
monarchical governments borrowed instead of originating it, it will 
afford an argument in favor of it, since republics are presumed to be 
founded on principles, recognizing the rights of the people. But 
there is another axiom which applies here ; and that is, where the 
whole population participates in the rights, privileges and immunities 
U of a free people, they must share equally also in its burdens. This, 
we think, is a principle as applied to civil matters, and we can see 



y 



15 

no reason why it should not apply to a military institution as well, 
if the definition we have already given of it is correct. If it does 
apply, then it binds each individual to the military service, just as 
he is bound to the performance of a civil duty ; and the same impar- 
tial justice that allows of cornjndsion in the one case, will justify it 
in the other. Conscription does not, then, violate the principle of 
equality and equal laws, and hence it is not, on that ground, cou' 
trary to the genius and spirit of our institutions ; but, on the other 
hand, it is conformable to both. 

II. "That it Creates a Privileged Class." 
The first question that arises here is, what constitutes a privileged 
class ? We can think of no better definition than that it is a portion , 
of a political society, released from certain duties and invested with 
certain privileges, which are denied to the rest of the community. 
Now the act of Congress declares that the National forces include a/? 
ablebodied citizens between the ages of twenty and forty-five, exclud- 
ing all over that age, on the presumption that they are unfit for 
the military service, or at least they are not to be called out except 
in a case of the extremest necessity. This is a sweeping clause, and 
incompatible with the idea of a privileged class, unless it is quali- 
fied by other provisions of the act. The only sections which narrow 
the limits of its operation, are the 13th and the 17th which pro- 
vide for a commutation to be paid to the Grovernment and for sub- 
stitution, and the 2d, which defines who are exempt. If a privileged 
class, is created, it must be by one or the other of these sections, or 
all. Let us see whether such an objection can be sustained against 
them. The 13th and 17th sections read as follows : — 

Sec. 13. And be it further enacted. That any person drafted and 
notified to appear as aforesaid, may on or before the day fixed for 
his appearance, furnish an acceptable substitute to take his place in 
the draft ; or he may pay to such person as the Secretary of War may 
authorize to receive, such sum, not exceeding three hundred dollars, 
as the Secretary may determine, for the procuration of such substi- 
tute, which sum shall be fixed as a uniform rate by a general order 
made at the time of ordering a draft for any State or Territory ; and 
thereupon such person so furnishing the substitute or paying the 
money, shall he discltarged from further liahility under that draft. 
And any person failing to report after due service of notice, as here- 
in prescribed, without furnishing a substitute, or paying the required 
sum therefor shall be deemed a deserter, and shall be arrested by the 
Provost Marshal and sent to the nearest military post for trial by 
court-martial ; unless upon proper showing that he is not liable to 
military duty, the board of enrollment shall relieve him from the draft. 



16 

Sec. 17. And be it further enacted^ That any person enrolled and 
drafted according to the provisions of this act who shall furnish an 
acceptable substitute, shall thereupon receive from the Board of En- 
rollment a certificate of discharge from such drait which shall exempt 
him from military daty during the time for which he was drafted, and 
such substitute shall be entitled to the same pay and allowance ])ro- 
vided by law as if he had been originally drafted into the service of 
the United States. 

The object of tlie 13th section we presume was twofold : first, to 
restrict the price of substitutes to a fiixed limit, and next to enable the 
Government to offer bounties for re-enlistments. It will no doubt ac- 
complish the first object, because no man will pay more for a substi- 
tute than he would have to pay to the Government to procure him one, 
•under this section. There is then this advantage, that it will gov- 
ern tlie price of substitutes, and thus bring them within the means 
of a larger lum-^ber of persons. The benefit derived from the re-enlist- 
ment of tried soldiers is so manifest that it only needs to be stated. 
Napoleon III seems to have realized it so fully that in 1855 he made 
it a State affair, and piovided for the release of drafted men on tlieir 
paying a certain sum to the Government, which goes into a fund 
from which bounties are paid to soldiers who re-enlist after the ex- 
piration of their term of service, thus retaining tried veterans for the 
raw recruits that are generally offered as substitutes. How f^ir such 
a plan would be advantageous here, must depend on the number of 
discharged soldiers, who might be induced in this way to re-enter the 
service. 

But to return to the direct question. It may be remarked that so 
long as exemption from a Draft is open to (dl and denied to none it can- 
not be said that the section just quoted creates a privileged class be- 
cause to do that it would have to declare that all men worth a cer- 
tain sum were for that reason to be exempt, just as judicial officers, 
teachers and students, ministers of the gospel, and tlie vario\is other 
classes of persons, are exempt under the laws of this State, by virtue 
of their professions or occupations. The men are drafted without 
reference to their professions, or occupations, or wealth or poverty. 
All are on a footing of the most perfect equality. This we presume, 
would settle the question as to the creation of a privileged class by 
the section referred to, and as it is an answer to the objection taken on 
this ground by " An Original War Democrat," we might leave the 
subject without further discussion. But we do not propose to shirk 
argument in this way, but to meet another objection that may be 



17 

urged with some force and plausibility, that although the act does 
not (Urecihj create a privileged class, its practical operation will re- 
sult in the same thing. 

To tliis we answer in the first place, that no government can fairly 
be made responsible for the advantages which the possession of 
means will give to one citizen over another in the matter of a draft 
any more than for advantages arising from talent, ingenuity or skill 
in anj^thing. When the laws have placed all men on a par in regard 
to the acquisition, the rest must be left to individual effort and to for- 
tune. This is so plain that it may be stated as a self evident truth. 
If the results of individual effort had to go into a common stock, for 
the benefit of the whole community, there would be no individual 
effort, and thus the condition of one portion of the community would 
be depressed, without elevating that of the other. In fact the most 
powerful incentive to individual effort, in any direction, is the con- 
viction that it can appropriate and hold fast of the results, and this 
arises from the selfishness of human nature. 

Now, to come to the point, we admit that under the practical 
working of section 13, the citizen who has three hundred dollars, or 
such less sum as shall be fixed on by the Secretary of War, can free 
himself from the draft, whilst another, who has not that sum, and 
cannot procure it, will have to serve, unless he can get a substitute 
under section 17. In other words, the man who has money may be 
advantaged by it in this as in a thousand other ways. Indeed, the 
principle of commutation is recognized in our civil and criminal 
laws and even in the Constitution of 1846, in respect to Quakers 
and other persons religiously opposed to bearing arms. And it is 
embodied in certain amendments to the militia law, now before the 
legislature, wdierein it is provided, that persons holding conscientious 
scruples, shall be exempted on payment of three hundred dollars to the 
state. One portion of the community that has means can own houses 
or farms, whilst another portion must remain houseless and landless 
until they can acquire means to possess them. There is, in fact, 
throughout every profession and occupation an inequality — the result 
of circumstances wholly beyond the control of legislation. Why, 
then, should this loth section be denounced on the ground that all 
men cannot avail themselves of it. Or, if it be said that no man 
should be relieved from a draft, unless he furnished a substitute, what 
is there in the 13th section which militates agninst that principle. 
The man who pays his three hundred dollars does furnish his substi- 
tute just as much as the man who procures one for himself. The 



18 

only difference is, that in the first instance it is the act of the 
Government, and in tlie other that of the individual. 

But suppose the 13th section were stricken out, how would the 
case stand then ? Why those who could buy substitutes would be 
relieved, whilst those who could not would have to render personal 
service. It would be only changing the location of the objection, 
without removing it. There would still be the same disparity 
between those who have means, and those who have none, in- 
creased by the feet that without the 13th section there would be 
no limit to the price of substitutes, and as the price increased, the 
number who would be able to obtain them would diminish. It will 
appear evident, then, that striking out the section referred to, would 
not remedy the inequality complained of, nor is there any rule that 
would, save that of exempting no drafted man for any reason what- 
ever, except that of physical disability. This would remedy it 
but we doubt whether it would not give rise to objections equally 
well grounded, although arising from other considerations. There 
will be a very large number of persons who will desire to go as 
substitutes if they can get the price they ask, and an equally large 
number who will desire to procure them. In fact these two classes 
will comprise nearly the whole population liable to draft, and if it 
should be announced that it was the intention of the Government 
to insist on the personal service of every man drafted, it would be 
most strenuously opposed by both classes. It would be said that the 
Government refused the services of those who desired to go, and 
com'pelled the services of those who did not ; that it was an innova- 
tion on every precedent furnished by the military history of this 
and other countries in cases of compulsory service, and that whilst 
it increased the rigors of a Conscription, it was absolutely a damage 
to the Government, by forcing an unwilling class into the field, and 
at the same time closing the doors of the service against those who 
might really wish to enter it or re-enlist in it, if they could be allowed 
to make such terms as they saw fit. Suppose the case of a person 
employing a large number of men who would be thrown out of 
employment by his absence, and who with their families, would thus 
be deprived of their usual means of support. Is it not clear that the 
interests of society would be better promoted by allowing him to 
furnish a substitute, than by compelling his personal service. It 
would be hard to answer these complaints, and especially when we 
reflect that if substitutes are received, the price they will obtain, 
odded to the Government bounty and pay, will make the aggregate 



19 

more than double the allowances, under any other Government in 
the world. Men to whom the prospect of getting three or four hun- 
dred dollars a year on a two years' service, is attractive, will not 
willingly forego it, and any regulation which should have that effect 
would not be likely to be popular. On the whole, then, we cannot 
see in either of the sections we have been considering, the creation 
of a privileged class, either directly or indirectly ; nor do we believe 
that if they were stricken out of the bill, it would be any more 
advantageous to the Government, or any more acceptable to the 
people. 

It only remains in this connection to notice briefly the second 
section of the act relating to exemptions ; and in order to compare 
it with the iirst section of the militia law relating to the same sub- 
ject, we give both sections entire : 

Act of Congress. 
Sec. 2. And be it further enacted, That the following persons be, 
and they are hereby exce})ted and exempt from the provisions of 
this act, and shall not be liable to military duty under the same, to 
wit: Such as are rejected as physically or mentally unfit for the 
service; also, first, the Vice-President of the United States, the 
Judges of the various Courts of the United States, and the heads of 
the various Executive Departments of the Governments, and Gover- 
nors of the several States; second, the only son of a widow, liable 
to military duty, dependent upon his labor for support; third, the 
only son of aged or infirm parent or parents dependent upon his 
labor for support; fourth, where there are two or more sons of aged 
or infirm parents subject to draft, the father, or if he be dead, the 
mother may elect which son shall be exempt; fifth, the only brother 
of children not twelve years old, having neither father nor mother, 
and dependent upon his labor for support; sixth, the fixther of 
motherless children under twelve years of age, dependent upon 
his labor for support ; seventh, where there are a father and sons 
in the same fjimily and household, and Jwo of them are in the 
military service of the United States as non-commissioned officers, 
musicians or privates, the residue of such family and household, 
not exceeding two, shall be exempt ; and no persons but such as 
are herein excepted shall be exempt; Provided, however, That no 
person who has been convicted of any felony shall be enrolled or 
permitted to serve in said forces. 

State Militia Law. 

Sec. 1. All able-bodied, white male citizens, between the ages of 
eighteen and forty-five years, residing in this State and not exempted 
by the laws of the United States, shall be subject to military duty, 
excepting : — 



20 

1st. All persons in the army or navy or volunteer force of the 
United States. 

2(.l. Ministers and preachers of the gospel. 

3d. The Lieutenant-Governor, members and officers of the Legis- 
lature, the Secretary of State, Attorney-General, Comptroller, State 
Engineer and Surveyor, State Treasurer, and clerks and employees 
in their offices, judicial officers of this State, including Justices of 
the Peace, Sheritis, Coroners and Constables. 

4th. Persons being of the people called Shakers or Quakers, pro- 
fessors, teachers and students in all Colleges, and professors, teachers 
and students in the several academies and common schools. 

5th. Persons who have been or hereafter shall be regularly and 
honorably 'discharged from the Army or Navy of the United States, 
in consequence of the performance of military duty, in pursuance 
of any law of this State, and such firemen as are now exempted by 
law. 

6th. The commissioned officers who shall have served as such in 
the militia of this State, or in any one of the Li^nited States, for the 
space of seven years; but no officer shall be so exempt unless by 
his resignation after such term of service duly accepted, or in some 
other lawful manner, he shall have been honorably discharged. 

7th. Every non-commissioned officer, musician and private, of 
every uniform com[>any or troop raised or hereafter to be raised, 
who have or shall hereafter uniform himself according to the pro- 
visions of any law of this State, and who shall have performed 
service in such company or troop for the space of seven years from 
the time of his enrollment thereni, shall be exempt from military 
duty, except in cases of war, insurrection or invasion. 

Will any one fail to see after examining and comparing the two 
sections, to which the inequality and pnvilege attaches? Under the 
act of Congress there are no classes exempt, and the individual 
exemptions are narrowed down to the lowest possible point. In 
fact, nearly the whole section is devoted to the recognition and pro- 
tection of the claims of the widow and orphan, the aged and infirm, 
and of those who have glready made sacrifices in the cause of their 
country. On the other hand, the State law recognizes fully, an 
exemption of classes and extends them beyond all reasonable limits. 

The exemption of persons of conscientious scruples, of judicial 
officers, under which head is included even constables, of teachers 
and students, of firemen, and of numerous other classes, is a clear 
violation of, as it is incompatible with the idea of equality and equal 
laws. Its practical working may be seen in "the statistics of the 
draft," contained in the late report of the Adjutant-General, from 
which it appears that out of 764,000 persons enrolled there were 
(including cases of physical disability) 139,000 exempts, or nearly 



21 

one in every five. Can it be possible that any man will attempt to 
bold up the humane and well-considered provisions of the act of 
Congress to public condemnation, as " odious,^^ and in the next breatli 
recommend as a substitute for them the regulations of the State law? 
Or is there any doubt which of the two sections the people would 
adopt, if they could make known their preferences through the 
ballot-box ? But our object in this connection was to show that there 
is nothing in the act of Congress to justify the assertion that "it 
creates a privileged class," and we proceed to notice other objections. 

III. "That the possession of such a power as the act arro- 
gates TO Congress, is utterly inconsistent with the 
existence, except at the pleasure of congress, of the 
State Militia." 

Let us examine for a moment what ground there is for this appre- 
hension. On the 1st of January last the organized militia of the 
State numbered in the aggregate about twenty-two thousand, whilst 
the number of persons liable to bear arms was over five hundred 
and fifty thousand. The National Guard, which is the organized 
Militia, is limited by law, in time of peace, to thirty thousand, the 
Commnnder-in-Chief having a discretionary power to increase the 
force in case of insurrection or invasion. Of the organized regi- 
ments only a portion are supplied with arms, and these, in some 
instances, of an inferior quality. The total number in the hands of 
the troops and in the Arsenals of the State on the 1st of January, 
1863, was less than fifteen thousand, and outside of the large cities 
there is a lamentable want of discipline and efficiency. The subject of a 
thorough reorganization and increase of this force engaged the atten- 
tion of the late State Administration, and a bill was prepared for 
the purpose, which was submitted to the Legislature, and became a 
law. If its provisions could be fully executed, we should have a 
force of thirty thousand men in a condition of efficiency and ready 
for service. Such a result, however, cannot be attained without 
means, and it will be found impossible to make the system self-sup- 
porting. Hitherto, the action of the Legislature has not indicated 
any disposition to make the liberal appropriations necessary to 
accomplish the objects of the act, nor is it at all probable any differ- 
ent policy will prevail, unless a great exigency, threatening the 
safety of the State, should arise. 

Such is the condition of the Militia, and it will appear on a mo- 
ment's reflection, that the enforcement of the act of Congress cannot 



22 

have tlie effect of disorganizing and breaking up a force that has 
never yet been brought to a state of organization. Indeed, up to 
the time of the completion of the enroHment, even the number of 
persons subject to mihtary duty was only a matter of conjecture. 
It is on this large body, comprising more than five hundred thou- 
sand men, that the Conscription must mainly fall; and it will be 
likely to operate on the National Guard only in a proportionate 
degree. A draft of fifty thousand men, would not, we think, exceed 
one in twelve of the population liable to bear arms, nor in that pro- 
portion would it draw in the aggregate more than two thousand 
men from the organized regiments. But, suppose the draft to fall 
on them with greater severity than we anticipated, would not the 
raising of fifty thousand men by voluntary enlistments operate the 
same way, and affect the organized regiments to a greater extent ? 
It is presumed there is no power residing anywhere to prevent the 
volimtary act, and unless the choice of means is denied to the Gov- 
ernment, there can be no greater power to prevent the compulsory. 
In either case it is the sovereign right of a Government emanating 
from the people, over the individual citizen, a Government clothed 
by the Constitution with the momentous duty of providing for the 
public safety and seeking to fulfill the high trust by constitutional 
means. We say constitutional means, because we have no more 
doubt that the act of Congress we are discussing is within the limits 
fixed by the National Charter, than we have that the sun rises and 
sets. But suppose it were a subject of doubt. Does it comport with 
the dignity, the honor or the best interests of the State of New 
York to assume the truth of the opposite conclusion, to anticipate 
the decision of the Judicial Tribunals, and to poi'son the public mind 
with unfair statements as to the motives and measures of the Admin- 
istration. 

IV. "That under the system which the Act of Congress 

ESTABLISHES THE StATE AND THE NATIONAL MILITARY SYS- 
TEM COME INTO PERPETUAL CONFLICT WITH EACH OTHER." 

"We do not think this objection well founded, and it has been 
already substantially answered under the previous head. There are 
no militia organizations in any of the States, that include a tenth 
part of the population liable to. bear arms, and in many of them 
these organizations only exist on paper. Indeed so little attention 
has been paid to this subject, that it is probable the enrollment 
made in 1862 presents the first complete statistics of the number of 



23 

the arms-bearing population of the country on record. The appli- 
cation of the term military system^ in a general way, to the Militia of 
the States, is out of place. Nothing will be found beyond an 
enrollment, more or less perfect, and a very small proportion of the 
ao-are^ate number ororanized into regiments. The draft will fall 
mainly on the great body of the unorganized Militia, and the num- 
ber of men that will be drawn from the portion organized into regi- 
ments will be comparatively insignificant. In this State on a quota 
of fifty thousand it will not equal the number that volunteered in 
1861 from the regiments in the city of New York alone. "What 
ground is there then for a collision? 

V. " That there was no necessity for the passage of such 
AN Odious, Oppressive and Unconstitutional Law." 
The constitutional objection has already been noticed, as also 
objections drawn from the provisions of the bill. The question of 
necessity is one on which there may be a difference of opinion, 
founded on conflicting views as to the number of troops required, 
and the probable extent of our losses. For ourselves, we have not 
only, never for a moment doubted its necessity, but we believe the 
life of the Nation hangs on its prompt and complete enforcement. 
We have arrived at this conclusion after a careful survey of the 
whole ground. On an experience of a year and a half in the organi- 
zation of troops, during which time nearly two hundred thousand 
men were raised, organized and placed in service, with the best 
means of ascertaining the tone of public sentiment, and noting the 
ebb and flow of the popular feeling, we have no hesitation in stating 
our belief, that the lev}'' under the call of July, 1862, was the last 
expiring effort of voluntary service in this State. Nor, if we look 
for a moment at the springs of human action, and consider the 
experience of other nations, will this appear surprising. It does 
not by any means force us to the conclusion, that the views of the 
great body of the people have changed on the subject of the war, 
neither does it indicate a state of exhaustion ; for our resources are 
not perceptibly weakened. It does indicate, however, a lack of that 
enthusiasm, which, in a popular contest, responds to the first call to 
arms, and of the spirit with which the people of this State answered 
the proclamation of the Executive in 1861, and the large force sent 
to the field last fall, was due mainly to the stimulus of large boun- 
ties, and to the unceasing efforts of the local committees. 



24 

If there is any weight in what is here said, then the question is 
narrowed down to the decision of the authority through which a 
draft shall be made ; for we assume there is but one determination 
as to carrying on the war until the supremacy of the Constitution 
and laws is acknowledged, over every foot of the Eebel States, 
and that whatever may be thought as to the strength of the addi- 
tional force which should be called out, they will at least be allowed 
to decide that question at Washington. Should it then be through 
the authority of the State or through that of the National Govern- 
ment? in other words, should it be a National force or Militia? In 
deciding in favor of a National force, enlisted for a long period of ser- 
vice, and to be used in the first instance to fill up the regiments now 
in the field, we think the Government acted most wisely. Nothing 
but a highly disciplined army will avail in a contest with an enemy 
who possesses military resources of the most formidable character, 
and under complete control, and who has the additional advantage 
derived from acting on the defensive. To attempt to carry on a 
war like this, with a Militia, would be futile and dangerous in the 
extreme. There is no existing law by which they could be called 
out for more than nine months, and deducting the time occupied in 
organizing them, it would reduce the period of their active service 
to less than six, in face of the fact, that you cannot transform a 
citizen into a soldier, well instructed and disciplined, in a year. 
Nor could a Militia, transferred into the service, with its officers, be 
used to fill up the gaps in the old regiments ; and thus these fine orga- 
nizations, on the efficiency of which our success mainly depends, 
would have to be consolidated, and the supernumerary officers dis- 
missed. The history of the two former wars in which we have 
been engaged, ought to convince the most skeptical, that a Militia 
will never answer out of its proper sphere, which is to meet sudden 
exigencies, and to act within their own States. To transfer thera 
from thence, to take the place of a regular army, can only be done 
at the extremist peril of the National interests. 

VI. " That never before has Congress passed a Conscription* 
Act, not even during the war of 1812, when the Nation 
was in imminent danger from a powerful enemy, aided 
BY Domestic Traitors, and when such was the need of 
the Country, that we had to draft men into the army." 

There are two allusions in the above passage, from which the 
writer will derive so little advantage, that, in our opinion, it would 



25 

bave been better to have omitted tbem altogether. Congress, it is 
said, has never before passed a conscription law ; but -was such a 
law never proposed ; and if it was, what defeated it ? Let us see. 

In 1814, the position of the military affairs of the country was 
such as to excite the liveliest alarm and apprehension. The enemy ' 
had occupied Washington ; the operations on the Northern frontier 
had amounted to no substantial advantage ; the army was reduced 
to an insignificant number, and, in every aspect, the prospects of the 
country seemed most discouraging. Such was the difficulty of 
obtaining men, that bounties were paid of one hundred and fifty 
dollars, and eight dollars to every person bringing in a recruit. This 
was the condition of things, when, in October, Monroe, then acting 
Secretary of War, sent to the Military Committee of the House of 
Representatives, a plan of Conscription, for the purpose of filling up 
the army to one hundred thousand men. In an accompanying let- 
ter, the Secretary reasoned with much force on the propriety of the 
measure, and its necessity for the safety of the country. He 
remarked : 

" The idea that the United States cannot raise an army in any 
other way than by voluntary enlistments, is believed to be repugnant 
to the uniform construction of all grants of power, and equally so 
to the first principles and leading objects of the Federal compact. 
An unqualified grant of power gives the means necessary to carry 
it into effect. This is a universal maxim which admits of no excep- 
tion. Equally true is it that the conservation of the State is a duty 
paramount to all others. The Commonwealth has a right to the 
service of all its citizens. In support of this right in Congress, the 
militia service affords a conclusive proof and striking example. The 
organization of the Militia is an act of public authority, not a volun- 
tary association, and the service must be performed by all under 
penalties which delinquents pa3\" 

"The limited power which the United States have in organizing 
the Militia, may be used as an argument against their right to raise 
regular troops in the mode proposed. If any argument could be 
drawn from that circumstance, I should suppose that it would be 
in favor of an opposite conclusion. The power of the United States 
over the Militia has been limited, and that for raising regular armies 
granted without limitation. There was doubtless some object in this 
arrangement. The fair inference seems to be' that it was made on 
great consideration ; that tlie limitation in the first instance was 
intentional, the consequence of the unqualified grant in the second." 
4 



26 

But the measure was not destined to become a law. It was 
opposed on precisely the same grounds as the recent act of Congress, 
and the close of the war early in 1815, by the Treaty of Ghent, 
withdrew the subject from the arena of debate. The opposition to 
the plan was especially earnest amongst what were called the anti- 
war Federalists of New England, and their views found expression 
in the resolutions and proceedings of the Hartford Convention, 
which met in December, 1814. The men who composed that Con- 
vention are, we presume, alluded to under the term " domestic 
traitors," but, reasoning from analogy, in what sense does it apply 
to them^ more than to the men of to-day^ who are using the same 
arguments against similar measures, that will be found in the reso- 
lutions of the Convention referred to. It is beneath the dignity of 
the subject we are discussing, to attack the motives of any set of 
men, but we may be permitted to say that never, in the political 
history of the country, has a more remarkable coincidence arisen. 
It will be fortunate for those who now feel called on to adopt and 
proclaim anew the opinions of the anti-war Federalists, if the coinci- 
dence does not hold good to the end; and if they escape that judg- 
ment at the bar of public opinion, which drove that party into a 
political exile, and which the moral sense of a great people will ever 
pronounce on those who, in a great public exigency, adopt a course 
which, no matter what the intention may be, must result in embar- 
rassment to the Government, and even peril to its existence. 

In concluding our task, we desire to congratulate "An Original War 
Democrat," that he has so completely fulfilled his promise of making 
his argument ^'■entirely intelligible and not uninteresting to the general 
readei-r We assure him it is interesting in more senses than he 
probably anticipated. The account of the blood letting, and the 
analogy between a grant by the Constitution to Congress, and one 
by the President of the United States to an " embryo captain,^^ are 
not only interesting, but exceedingly appropriate to the subject 
under discussion. It is interesting, too, to find that, in addition 
to the Gunpowder Plot, the Eye House Plot, the Blue- Light Federalist 
Plot, and a host of other plots, history will be indebted to "a??. 
able and dear-headed lawyer," for an additional chapter on the 
subject of plots, containing an account of a plot to create a j-j^wi- 
leged class and a plot to overawe the Legislatures of Indiana and 
Illinois, by the exhibition of a force of black janizaries, directed 
by Abolitionist Governors. Lastly, it is interesting to find how 
much we may be mistaken as to the opinions of the great commen- 



27 

tators, and even of noble old John Marshall himself, on the inter- 
pretation of the Constitution and the powers of Congress ; and how 
apt we are to be deceived, in gathering the meaning of an author 
from the general course of his reasoning, rather than from some 
isolated passage. It is true the particular clause that strikes us, may 
be in close proximity to something incongruous, but in that case the 
proper way would appear to be to avoid the conflicting element, by 
some process like cancellation. 

The name " Democrat" brings back old reminiscences. Once we 
were a Democrat, and we still love the distinctive doctrines of the 
party. We left it, because the teachings of its great lights had been 
ignored, its principles trampled under foot, and its moral power 
wasted, to satisfy the arrogant demands of a Southern oligarchy. It 
supported the measures of Government in the war of 1812 ; now it 
has changed places with the Anti-War Federalists and denounces 
them. Once it applauded, when its greatest chieftain swore by the 
Eternal the Union should be preserved, and when he proclaimed to 
traitors that they should hang high as Haman ; now, under the pre- 
text of a sacred regard for civil rights and personal liberty, it refuses 
to lift up its voice for their punishment. As we stood in the rotunda 
of the Capitol, and contemplated the full length portait of the " Old 
Hero," we could not help exclaiming, 01 for one hour of Jackson, 
to bring back the great Democratic party to the old landmarks, to 
expurgate from its platform the heretical doctrines that have been 
foisted into it, and to marshal its hosts, side by side, with all that is 
true and patriotic in the land, in an unconditional and unqualified 
support of the Government ! Such a moral power would sweep 
every obstacle out of its path. It would overawe treason on the one 
hand and fanaticism on the other. It would shape the policy 
of the Government at home and control the policy of Govern- 
ments abroad. It would do more than this. It would convince 
the rebellious States of the folly of further resistance, and leave 
them no hope but in submission. Then our Country, rising out of 
the dust of humiliation, would commence anew its march, on a bound- 
less career of progress and prosperity, and the Union, clothed with 
all the freshness of a perennial youth, would once more reflect its 
benignant rays throughout the world, enduring as the principles on 
which it rests, and from which alone it can receive its proper nutri- 
ment and support. 

EX-ADJUTANT-GENEEAL. 



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